SEQ CHAPTER \h \r 1MOTIONS TO QUASH RECORDS SUBPOENAS
By Thomas J. Curcio
Dunn, Curcio & Keating, P.C.

A common defense tactic in personal injury litigation is to issue records subpoenas to all current and past medical providers seeking all prior medical records. Oftentimes, these subpoenas are directed to former psychologists or psychiatrists or other health care professional that a client may be sensitive about. An effective tool in combating these requests is to file a motion to quash the subpoena pursuant to Virginia Code § 32.1-127.1:03 (1950, As Amended). That code section places a burden upon the defendant to show good cause to compel the disclosure of her private records over her objection. The author has been successful in using this code section to quash a subpoena for mental health records in a disc herniation case.

Virginia Code §32.1-127.1:03 recognizes “. . .a patient’s right of privacy in the content of a patient’s medical record.” (1950, As Amended). Psychiatric and counseling records are medical records and are private . See Virginia Code §32.1-127.1:03, subsection B. and Virginia Code §8.01-581.1 (1950, As Amended).
Most importantly, Code §32.1-127.1:03 places the burden upon the discovering party to overcome the plaintiff’s statutorily recognized right to privacy of her medical records. That Code Section provides, in pertinent part, as follows:

In the event that the individual whose records are being sought files a motion to quash the subpoena, the court shall decide whether good cause has been shown by the discovering party to compel disclosure of the patients private records over the patient’s objections.

Va. Code §32.1-127.1:03 (1950, As Amended).

Under subsection H.4. of Code § 32.1-127.1:03, in considering good cause, the Court shall consider the following:

(i) the particular purpose for which the information was collected; (ii) the degree to which the disclosure of the records would embarrass, injure, or invade the privacy of the individual; (iii) the effect of the disclosure on the individual’s future health care; (iv) the importance of the information to the lawsuit or proceeding; and (v) any other relevant factor.

In preparing the motion to quash, it is recommended that the subject records be reviewed to determine whether the collision or injury are discussed. If they are discussed, then it becomes a judgment call as to whether, given the context of the discussions and frequency, the motion should be filed. Assuming the records do not mention the current complaints or collision (such would not be an issue with prior psychiatric or psychological records), the next step would be to speak with the healthcare provider and discuss the factors referenced above. That is, the following factors should be discussed: (i) the particular purpose for which the information was collected; (ii) the degree to which the disclosure of the records would embarrass, injure, or invade the privacy of the individual; and (iii) the effect of the disclosure on the individual’s future health care. It is the author’s experience that the treaters are very sympathetic to their patients and believe that an ongoing therapeutic relationship will be damaged by disclosing the records. For example, a counseling relationship, to be effective, requires candor and honesty. A patient is less likely to be candid and honest if his/her records are subject to production. It is suggested that an affidavit stating such things be obtained from the healthcare provider.

A second recommendation is that counsel be selective in choosing which subpoenas to quash. In the author’s experience, the judge was sensitive to the fact that the client had been in counseling for more than 20 years. Finally, in moving to quash, it is important to advise the court that all relevant records relating to the claimed injuries have been produced.

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